Can Extrinsic Evidence be Considered in Evaluating Probate of a Will?

This issue was addressed in the recent decision in the Estate of Berger, and suggests the value of the alternative estate plan including a revocable living trust and pour-over will.

In Berger, the appellate court recognized that the California Probate Code mandates that a document will be considered a “will” capable of being probated in court only if the document is in writing, signed (or authorized) by the testator, and signed by two people who witnessed the testator sign or acknowledge her signature.

However, the code will overlook a failure to comply with the two-witness requirement if the party seeking to probate the document as a will establishes by clear and convincing evidence (i.e., higher than more likely true than not (civil cases) and less than beyond a reasonable doubt (criminal cases)), that, at the time the testator signed the document, the testator intended the document to constitute the testator’s will.

The appeal presented two questions:

(1) In evaluating the testator’s intent, may a probate court consider extrinsic evidence of the circumstances surrounding the document’s execution if the intent expressed by the document’s terms is unambiguous, and

(2) Do the facts of tes case compel, as a matter of law, a finding by clear and convincing evidence that the drafter of the document at issue intended the document to make a revocable disposition of property that takes effect upon her death?

The appellate court concluded that the answer to both questions was “yes.”

Melanie Berger (Melanie) started dating Maria Coronado (Maria) in the spring of 2002. At that time, Maria was in the midst of a divorce and had three daughters who were then 15, 11, and 10 years old. Melanie had met the daughters a few times prior to August 2002.

In early August 2002, Maria proposed marriage to Melanie with a diamond solitaire ring and the two became engaged.

Melanie was assigned male at birth.  After living as a woman and wearing female clothing for a year as her doctor ordered, Melanie arranged to have gender reassignment surgery in late August 2002. That surgery entailed the surgical alteration of her sex organs.

After proposing to Melanie but before Melanie had her surgery, Maria traveled to Spain with her daughters to visit family. While Maria was in Spain, Melanie and Maria corresponded through email using a variety of different email accounts.

Specifically, Maria sent Melanie an email on the day she arrived in Spain.

The letter starts with the date “8-16-02”; lists Melanie’s full name, address, and social security number; and begins with the salutation “To whom it may concern.” The letter then reads as follows: “I, Melanie Perry Berger, with sound mind and excellent health, name Maria L. [Coronado], [lists Maria’s then-current address], as my sole beneficiary in the event of my death. She will take ownership of all my personal possessions and property located at [address of Melanie’s house in Pasadena].

She will make the sole determinations as to what she will keep, and what personal belongings that may, or may not, be distributed to any inquiring family members. She will also receive, and have full discretion of: 1. My [Pasadena] home located at [listing address]. 2. My retirement Thrift Savings. 3. My 1984 Mercedes Benz 300 CD, license [listing number]. 4. My Washington Mutual checking account [listing number]. 5. Any and all wages paid to my account, post mortem.

It should be noted that I would prefer to have some of the above Thrift assets set aside for the education of [Maria’s] three daughters, [naming each]. This is, however, only a suggestion, and Maria . . . shall have the final decision on these matters.”

The letter closes with “Sign[ed] and dated 8-16-02 in Pasadena, California,” and beneath it, Melanie’s signature.

No one witnessed Melanie sign the letter.

On the very same day as the letter is dated, Melanie sent Maria an email informing her that Melanie “decided” to “leave the house, all the belongings, [her] record collection and [her] car” to Maria and also would “leave [her] retirement savings in [Maria’s] name to be used for the three girls[’] college education in the event of [her] death.”

Melanie explained that she would “leave these documents on [Maria’s] desk” “chair” “before [Melanie] leaves” for her gender reassignment surgery.

When Maria returned home from Spain, she found a copy of the letter on her desk chair.

Although Melanie and Maria continued dating for another six months after Melanie’s surgery and Maria’s return from Spain, the two did not discuss the letter at any point thereafter. Neither Melanie nor Maria mentioned the letter to Maria’s daughters.

Melanie did not file the paperwork to designate Maria as the beneficiary on her retirement account.

Melanie and Maria ended their romantic relationship in the spring of 2003, and ceased all contact with one another.

Melanie became somewhat of a recluse and “hardly ever left the house.”

In 2020, Melanie became increasingly religious and told neighbors that she wanted to leave her assets “to the church.” There is no evidence Melanie ever memorialized her new intention.

Melanie passed away on November 30, 2020.

As the pastor of Melanie’s church was going through Melanie’s personal effects in her home, he found the letter at the bottom of one of the drawers of Melanie’s desk. The pastor gave a copy to Melanie’s sister and called Maria to inform her of Melanie’s death.

By this point in time, Maria had lost the copy of the letter Melanie had left on her desk chair 18 years earlier.

On February 4, 2021, Maria filed a petition seeking to have the letter probated as Melanie’s will. Melanie’s sister, who was otherwise Melanie’s sole heir at law, opposed the petition.

The probate court held a two-day evidentiary hearing in 2021. Maria, Melanie’s sister and a handwriting expert testified. The court admitted the letter as well as several of the August 2002 emails between Melanie and Maria.

At the conclusion of the second day, the probate court denied Maria’s petition.

Because the letter did not comply with the general requirements for a will under the Probate Code, the court viewed its “threshold” task—before reaching any questions of fraud or undue influence—as “ascertain[ing]” “whether” Maria had proven, by clear and convincing evidence, that Melanie intended the letter to be her will. The court expressed that it “ha[d] doubts about the letter and its context,” explaining that “perhaps” Melanie meant to benefit Maria or “perhaps, she had forgotten” about the letter in the intervening years.

Maria filed a timely appeal.

In California, “[t]he right to dispose of property by will is entirely statutory.”

The Probate Code prescribes that a document is effective as a will only if it is

(1) “in writing”;

(2) “signed” (a) by the testator, (b) by someone else, but in the testator’s name, in the testator’s presence, and by the testator’s direction, or (c) by a conservator acting pursuant to a court order; and

(3) witnessed by at least two persons who (a) at the same time witnessed the testator sign the document or acknowledge her signature or the document, and (b) sign the document during the testator’s lifetime while understanding that the instrument they sign is the testator’s will.

Requiring a testator to adhere to such formalities serves three functions—namely,

(1) an evidentiary function by furnishing reliable evidence about the testator’s intent that prevents fraudulent dispositions of the testator's properties;

(2) a protective function by reducing the possibility of interference with the process of execution; and

(3) a cautionary or ritual function to help ensure that the will reflects a considered decision.

But these prescribed procedures are not without exception. Specifically, the code will overlook a testator’s noncompliance with the two-witness requirement:

(1) if the material provisions of the document are in the handwriting of the testator (in which case it is called a “holographic will”), or

(2) if the party seeking to have the probate court recognize the document as a will establishes by clear and convincing evidence that, at the time the testator signed the document, the testator intended the document to constitute the testator’s will.

These relaxed procedures are designed to give effect to a drafter’s clear intent to dispose of property through a proffered document, even when that document has procedural deficiencies or mistakes that cause it to fall short of fully complying with the Probate Code’s procedures.

In assessing whether an instrument was intended to be testamentary, the probate court is to look to (1) the words in the document itself, and (2) the “circumstances” “surrounding” its creation and execution.

When it comes to the words used, no particular words are necessary to show a testamentary intent, but words referring to the drafter’s potential death tend to indicate such an intent.

When it comes to the surrounding circumstances, courts may examine, among other things, (1) whether the document was drafted at a time when death was near (or nearer than usual) or whether other “extreme circumstances” exist, as persons drafting documents at such times are more likely to be acting with testamentary intent; and (2) whether the drafter has retained the document, as persons are more likely to retain documents that were meant to have lasting effect.

Although courts as a general matter may not resort to extrinsic evidence in interpreting the meaning of a document (including a will) when the document’s terms are unambiguous, this principle does not apply here.

That is because the probate court’s task here is not to assess the meaning of the words in a document, but instead to assess the meaning of the document itself—namely, was that document intended to be a will?

In this particular context, an unbroken line of precedent squarely establishes that extrinsic evidence is always admissible on the question of the drafter’s intent.

Taken together, the words in the letter itself and the circumstances surrounding its creation and execution compel the finding, as a matter of law, that Melanie intended her letter to have testamentary effect.

The substance of the letter names Maria as Melanie’s “sole beneficiary" in the event of her death as well as the person who has “full discretion” to dispose of all of her personal possessions and property; lists four of Melanie’s most significant assets (namely, her house, her retirement account, her car, and her checking account); and even contemplates that “inquiring family members” might seek some of her belongings, but leaves it to Maria to decide which “personal belongings” to give them.

The format of the letter also evinces a level of formality consistent with a document meant to have enduring effect:

Melanie drafted the letter on her work stationery; recited her full name, address, and social security number; addressed it “[t]o whom it may concern”;

started the letter with a recitation of her “sound mind and excellent health”; and

concluded the letter with a recitation of the date and location of signing as well as her signature.

The surrounding circumstances further conclusively confirm Melanie’s intent to make a revocable disposition of her property to take effect upon her death.”

Melanie told Maria—the “sole beneficiary” and effective executor of the will—that Melanie was executing a “will” and Melanie did so in an email sent on the very same day she created and executed the letter.

What is more, Melanie on that date was days away from having major surgery, and hence wrote the letter at a moment in time when she was more acutely facing her own mortality.

Melanie also treated the letter like a will insofar as she gave Maria (again, the sole beneficiary and executor of the will) a copy of the letter and kept the original for herself in a place where it was likely to be found—and was, indeed, found—decades later.

None of the reasons cited by the probate court or proffered by Melanie’s sister negated this conclusion.

LESSONS:

1.         A document will be considered a “will” capable of being probated in court only if the document is in writing, signed (or authorized) by the testator, and signed by two people who witnessed the testator sign or acknowledge her signature.

2.         The code will overlook a failure to comply with the two-witness requirement if the party seeking to probate the document as a will “establishes by clear and convincing evidence that, at the time the testator signed the [document], the testator intended the [document] to constitute the testator’s will.”

3.         An unbroken line of precedent squarely establishes that extrinsic evidence is always admissible on the question of the drafter’s intent.